N D JAYAPRAKASH·DECEMBER 23, 2023
While the pursuit of justice for the Bhopal Gas Tragedy victims has been a harrowing experience, the positive signs that emanate now and then restore hope that justice will be rendered at some point in time, writes N.D. Jayaprakash.
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Prologue
Through an unprecedented Order dated November 28, 2023, the High Court of Madhya Pradesh has initiated contempt proceedings against three officials of the state and Union governments. It has issued contempt notice to six other senior officials.
These officials have been held guilty and served notice for their failure to comply with the directions of the Supreme Court dated August 9, 2012 to maintain consolidated medical records through computerisation and networking of medical records of all hospitals and clinics where gas victims have been undergoing treatment and for the failure of these officials to provide quality medical care through specialists and with the best of facilities.
The said Order has revived the hope that justice would be rendered to the gas victims once the contemnors— under threat of punishment— would do what is required of them to ensure that each gas victim gets a copy of their complete medical records based on the actual degree of injury suffered by them.
Incidentally, one of the main grounds on which the Supreme Court had on March 14, 2023 dismissed the Union government’s curative petition against the unjust settlement of February 1989 was that it was the government that had categorised the vast majority of gas victims as suffering from only “minor” injuries.
If and when health records are brought on record, in all likelihood gas victims would at last attain justice.
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HOPING against hope, the victims of the Bhopal gas leak disaster of December 2 and 3, 1984 have been waging a determined struggle for justice for 39 years.
While most of the time, the pursuit of justice has been an arduous task and a harrowing experience, the positive signs that emanate from time to time restore hope that justice would be rendered to the gas victims at some point in time.
The latest signpost of hope is the Order passed by the High Court of Madhya Pradesh at Jabalpur in a contempt petition that was filed by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) on May 15, 2015.
Also read: Bhopal gas tragedy: Union government’s curative petition dismissed
This petition was filed concerning an August 9, 2012 writ petition against non-compliance by concerned officials of the governments of India and Madhya Pradesh of the various directions passed by the Supreme Court of India.
The context
In 1998, a writ petition was filed under exceptional circumstances.
The failure to properly document the magnitude and gravity of the short-term and long-term impact of the disaster on living beings and the environment has been one of the biggest disservices rendered to the people of Bhopal.
While most of the time, the pursuit of justice has been an arduous task and a harrowing experience, the positive signs that emanate from time to time restore hope that justice would be rendered to the gas victims at some point in time.
The massive disaster was caused by the escape of highly toxic gases from a storage tank containing 40 tonnes of methyl-isocyanate (MIC— with a high toxicity level at concentrations of just 0.02 parts per million) from the pesticide plant of Union Carbide India Limited (UCIL), which was controlled by a US multinational company, Union Carbide Corporation (UCC).
The toxic cloud spread across 40 sq. km of area covering 36 of the 56 municipal wards of Bhopal, where approximately two-thirds of the city’s population of about 900,000 resided.
It may be recalled that during January–February 1985, at the initiative of the Tata Institute of Social Sciences (TISS), Mumbai and with the help of over 500 student and teacher volunteers from nine schools of social work from across the country, attempts were made to carry out a house-to-house survey of the gas-affected areas of Bhopal.
However, after the survey team had collected details from around 25,000 households of the estimated 100,000 households in the gas-affected areas, the state government abruptly terminated the survey. It confiscated all the pro forma for no apparent reason. TISS never got an opportunity to analyze even that limited data.
Thereafter, the Supreme Court, in an Order dated November 11, 1985 in Dr Nishit Vohra and Ors versus State of MP and Ors, had directed as follows:
“It is desirable that some independent machinery must be set up … to carry out … a proper epidemiological survey and also a house-to-house survey of the gas-affected victims both of which surveys will also be necessary for the purpose of determining the compensation payable to the gas victims and their families.
“It would [also] be necessary for the purpose of ensuring proper medical facilities to the gas-affected victims.”
Also read: Bhopal gas tragedy: Supreme Court reluctant to re-open settlement
The Supreme Court also constituted a seven-member committee of experts [two from the Indian Council of Medical Research (ICMR), two from the state government, Dr Heeresh Chandra (medico-legal consultant), and two representing gas victims] to prepare a report for implementing these directions.
Since no consensus was reached in the expert committee, Dr Anil Sadgopal and Dr Sujit Das, representing gas victims, submitted a detailed minority report to the Supreme Court on August 30, 1988 emphasising the need for carrying out a proper epidemiological survey in the gas-affected areas of Bhopal. However, the court did not take cognisance of that report.
The failure to properly document the magnitude and gravity of the short-term and long-term impact of the disaster on living beings and the environment has been one of the biggest disservices rendered to the people of Bhopal.
The Supreme Court, again in a judgment dated October 3, 1991 in a review petition, had highlighted the need for medical surveillance of the entire gas-exposed population of Bhopal.
“We are of the view that for at least a period of eight years from now [vide Order dated May 2, 2006, the term was extended till completion of its object] the population of Bhopal exposed to the hazards of the MIC toxicity should have provision for medical surveillance by periodic medical check-up for gas-related afflictions.
“This shall have to be ensured by setting up long-term medical facilities in the form of a permanent specialised medical and research establishment with the best of expertise. An appropriate action plan should be drawn up. It will be proper that an expert medical facility in the form of the establishment of a full-fledged hospital of at least 500-bed strength with the best equipment for the treatment of MIC-related afflictions should be provided for medical surveillance and expert medical treatment.
“The state of Madhya Pradesh shall provide suitable land free of cost. The allocation of the land shall be made within two months and the hospital shall be constructed, equipped and made functional within 18 months.”
Also read: Curative petition filed, but where is the cure to the Bhopal gas tragedy?
“We hold that the capital outlays on the hospital and its operation expenses for providing free treatment and services to the victims should, both on humanitarian considerations and in fulfillment of the offer made before the Bhopal court, be borne by the UCC and UCIL.”
Tardy progress
Despite these significant directions, no action was initiated for setting up a specialised hospital for the gas victims since the UCC did not contribute a single penny for that purpose.
Ultimately, funds for the hospital were only realised in September 1994 from the sale of the attached properties of the UCC in India, which had been attached by the Bhopal District Court on April 30, 1992 at the intervention of the CBI as well as BGPMUS, BGPSSS, and the Bhopal Group for Information and Action (BGIA). Even then progress towards construction of the hospital proceeded at a tardy pace.
The toxic cloud spread across 40 sq. km of area covering 36 of the 56 municipal wards of Bhopal, where approximately two-thirds of the city’s population of about 900,000 resided.
It was under these compelling circumstances that the writ petition of 1998 was jointly filed by BGPMUS, BGIA and BGPSSS on January 14, 1998 to:
(a) Ensure proper and adequate medical care to all the gas victims.
(b) Revive medical research on diseases [arising from and related to the Bhopal gas leak disaster, which the ICMR had abandoned in 1994.
(c) “Direct the state of Madhya Pradesh to issue a health card to each of the Bhopal Gas victims disclosing to each of the said victims the full information on his [/her] medical status, and to direct the government to provide free medical assistance to the said persons at all times.”
In a supplementary affidavit that was filed on August 8, 2002, the petitioners pleaded that:
(a) “All gas-affected persons should be issued … identity cards.”
(b) “There must be a uniform treatment protocol which has to be followed by all hospitals meant for gas victims.”
(c) “All the hospitals and medicine centres should be computerised and linked to each other to facilitate efficient referrals and exchange of crucial information such as availability of medicines.”
(d) “The government of Madhya Pradesh has been presenting an incorrect picture of the ground reality in Bhopal to the court.”
Vide an Order dated August 17, 2004, the Supreme Court constituted an “advisory committee” to monitor the status of Bhopal disaster-related medical research and a “monitoring committee” to monitor the status of medical rehabilitation of Bhopal gas victims. Both the committees had representatives of gas victims.
Despite significant directions, no action was initiated for setting up a specialised hospital for the gas victims since the UCC did not contribute a single penny for that purpose.
Pleas upheld
After prolonged litigation of no less than fourteen years, the Supreme Court upheld the pleas of the petitioner and was pleased to issue appropriate directions. The major directions passed by the Supreme Court on August 9, 2012 are as follows:
Para 35 (7): “We direct the ICMR as well as [National Institute for Research in Environmental Health-ICMR] NIREH to ensure that the research work is carried on with exactitude and expeditiousness and further to ensure disbursement of its complete benefit to the gas victims.”
Para 35 (9): “The monitoring committee must operationalise medical surveillance, computerisation of medical information, publication of health booklets, etc. The monitoring committee shall also ensure that the ‘health booklets’ and ‘smart cards’ are provided to each gas victim irrespective of where such victim is being treated.
“This direction shall apply to all the hospitals run by the government or otherwise in Bhopal. We direct the state government to provide assistance in all respects to the Empowered Monitoring Committee and take appropriate action against the erring officer or officials in the event of default.”
“We also direct complete computerisation of the medical information in the government as well as non-government hospital or clinics, which should be completed within a period of three months from today.”
Para 35 (10): “We are informed that there is a large number of vacancies of doctors and supporting staff in the hospitals and allied departments. In the BGTRRD, 80 percent of posts of specialists and 30 percent of doctors are lying vacant.
“Some posts are also lying vacant in the fourth-grade staff. Thus, we direct the concerned authorities to take appropriate steps in all respects not only to fill up these vacancies but also to provide such infrastructure and facilities that the doctors are not compelled to or prefer to resign from the BMHRC employment and its various departments, due to inadequate facilities.”
Para 35 (11): “The Union of India, the state government and the ICMR should even consider the proposal for providing autonomy to the BMHRC and even make it a teaching institution so as to provide attractive terms, studies and job satisfaction therein.
The Supreme Court constituted an “advisory committee” to monitor the status of Bhopal disaster-related medical research and a “monitoring committee” to monitor the status of medical rehabilitation of Bhopal gas victims.
“This will not only help in providing better opportunities of employment but would better serve the purpose of providing care and treatment of high quality to the gas victims.”
Para 35 (17): “We also direct the state government and the monitoring committee to evolve a methodology of common referral system amongst the various medical units under the erstwhile BMHRC and the BGTRRD to ensure that the gas victims are referred to appropriate centres for proper diagnosis and treatment in terms of the nature and degree of injury suffered by each one of them.”
Para 35(18): “We also direct that the monitoring committee, with the aid of the advisory committee, NIREH and the specialised doctors of the BMHRC issue a standardised protocol for treating each category of ailment that the gas victims may be suffering from. This shall be done expeditiously. It will be highly appreciated if the committee also prescribes scientific categorisation of patients and injuries.”
The Supreme Court further directed the High Court of Madhya Pradesh to supervise the execution of the above directions. As a result, the matter was listed on September 12, 2012 before the high court.
N.D. Jayaprakash (jaypdsf@gmail.com) is co-convener, Bhopal Gas Peedith Sangharsh Sahayog Samiti and petitioner no.2 in contempt petition (C) no.832 of 2015.
Bhopal disaster litigation: High court’s Order rekindles victims’ hopes— Part 2
N D JAYAPRAKASH·DECEMBER 30, 2023
While the pursuit of justice for the Bhopal Gas Tragedy victims has been a harrowing experience, the positive signs that emanate now and then restore hope that justice will be rendered at some point in time, writes N.D. Jayaprakash.
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IN Part 1, we established how, after prolonged litigation of no less than fourteen years to give justice to the victims of the Bhopal Gas Tragedy, the Supreme Court upheld the pleas of the petitioner and issued appropriate directions in 2012.
Contempt petition
When no positive steps were taken by the respondents in the 2012 writ petition to comply with the directions (quoted in Part 1) of the Supreme Court in the writ petition of 1998 for over two years, the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) were compelled to file a contempt petition on May, 15 2015 in which certain officials of the Union and state governments were listed as contemnors.
These officials included secretaries of the Union ministries of health and family welfare and ministry of chemicals and fertilisers; the chief secretary of government of Madhya Pradesh; secretary of the Bhopal Gas Tragedy Relief and Rehabilitation Department (BGTRRD); senior deputy director general of the Indian Council of Medical Research (ICMR); and directors of the Bhopal Memorial Hospital and Research Centre (BMHRC) and the National Institute for Research in Environmental Health (NIREH), Bhopal.
It is particularly worrying that the size of the cohort for the ongoing Epidemiological Survey, which was 80,000 in the gas-exposed areas in 1985, has been drastically reduced to just 10,000 by 2023.
The state information officer (former and current) and the National Informatics Centre (NIC), Bhopal were subsequently added as contemnors.
The reasons for filing the said contempt petition were:
Firstly, non-compliance with Para 35(7) of the Supreme Court judgment of August 9, 2012. In this regard, the petitioners, the BGPMUS and the BGPSSS, had submitted that ICMR and the NIREH had not done enough either “to ensure that the research work is carried on with exactitude and expeditiousness” or “to ensure disbursement of its complete benefit to the gas victims”.
Moreover, “even after repeated directions from the Supreme Court since 2001 and despite several recommendations from the advisory committee and the monitoring committee since 2005, nothing was done to establish a central registry at the Centre for Rehabilitation Studies (CRS— the predecessor of the NIREH) for computerisation and networking of health records of gas victims.”
Also read: Bhopal gas tragedy: Union government’s curative petition dismissed
Despite being charged with contempt, the NIREH had done nothing to mend its ways.
As per updated information, the NIREH has reportedly conducted about 14 Bhopal disaster-related studies between 2010 and 2018, the results of which are not yet in the public domain.
However, it is now known that a study on congenital deformation has been suppressed. In other instances, several studies— such as the one on chronic kidney disorder (CKD)— have actually been terminated midway.
Since 2018, the only ongoing study related to the Bhopal disaster at the NIREH is the Long-Term Epidemiological Survey on Health Effects of Bhopal Toxic Gas Exposure. No other Bhopal disaster-related research has been undertaken for the last five years, which is wholly contrary to the purpose for which the NIREH was established.
It is particularly worrying that the size of the cohort for the ongoing Epidemiological Survey, which was 80,000 in the gas-exposed areas in 1985, has been drastically reduced to just 10,000 by 2023.
There is no information on the fate of the 70,000 individuals with whom the survey teams are unable to reestablish contact, which is a major lapse on the part of the NIREH.
Secondly, non-compliance with Para 35(9) of the August 2012 Supreme Court judgment. The petitioners contended that while the BMHRC has claimed that it was maintaining medical records of over 3.89 lakh gas victims, the progress in issuing “health booklets” was abysmal.
It was further pointed out that: “The monitoring committee in Paras 4(IX) and 6 of its Fourth Quarterly Report dated January 8, 2015 has been very critical of the lackadaisical approach of the state government and the BMHRC (ICMR), which has resulted in haphazard or improper computerisation of medical records and failure to issue a health booklet to each gas victim with his or her complete medical record.
“Thus, even thirty years after the disaster, the Union of India, the state of MP and the ICMR not only remain unconcerned about the urgency of ensuring adequate medical care and documenting or monitoring the health status of gas victims but also have no compunctions in wantonly disrespecting numerous other directions of even the Supreme Court.”
Also read: Bhopal gas tragedy: Supreme Court reluctant to re-open settlement
Thirdly, non-compliance with Para 35(10) of the aforementioned Supreme Court judgment. In this regard, the petitioners had submitted that the monitoring committee, in its November 24, 2011 report, had observed that: “The situation regarding the availability of specialists and professors etc., has not improved and it is clear that many of the said posts of professors and associate professors in the departments of cardiology, CTVS, gastro-medicine, gastro-surgery, nephrology, neurology, ophthalmology, pathology, pulmonary medicine, radiology, and urology are still lying vacant and have not been filled up so far.
There is no information on the fate of the 70,000 individuals with whom the survey teams are unable to reestablish contact, which is a major lapse on the part of the NIREH.
“It cannot be overemphasised that, as senior positions of specialists in most of the important departments of the BMHRC have been lying vacant for long, the quality of medical services provided by the hospital cannot be said to be satisfactory.”
The BGTRRD hospitals were in a far worse state.
Fourthly, non-compliance with Para 35(11) of the Supreme Court judgment. In this regard, the petitioners had submitted that since no steps had been initiated to upgrade the status of the BMHRC (to that of the All India Institute Of Medical Science or AIIMS or by merging BMHRC with the AIIMS, Bhopal), even the attempt to attract the requisite talented professionals to improve the quality of medical care and treatment to the gas-victims at the BMHRC has been rendered futile.
Thus, by failing to upgrade the status of the BMHRC, the Union of India and the ICMR are guilty of violating the said direction in Para 35(11) of the 2012 Order of the Supreme Court in the writ petition of 1998.
Fifthly, non-compliance with Para 35(17) of the 2012 Supreme Court judgment. In this regard, the petitioners had submitted that: “It is also inexplicable as to why the hospitals under the BGTRRD were allowed to develop a computer system that was incompatible with the system that was already in operation at the BMHRC.
“In this regard, the petitioners humbly submit that they had submitted a letter to the monitoring committee on December 12, 2013, emphasising the need for maintaining compatibility between the computer systems at the BMHRC and the proposed system at the BGTRRD hospitals.”
Also read: Curative petition filed, but where is the cure to the Bhopal gas tragedy?
The petitioners had further added that: “Due to non-compatibility of the computer systems installed at the BMHRC and at the BGTRRD hospitals, the direction of the Supreme Court in Para 35(17) of the Order dated August 9, 2012 in W.P.(C) no.50 of 1998 for evolving a methodology of common referral system amongst the various medical units under the BMHRC and the BGTRRD remains unexecuted.
“The state government is wholly at fault for causing this inbuilt incompatibility because it was well aware that a computerised health record-keeping system was already in operation at the BMHRC for the last one-and-half decades.
“Under the circumstances, by failing to evolve a methodology of common referral system amongst the various medical units under the BMHRC and the BGTRRD, the state of Madhya Pradesh is guilty of disregarding the direction in Para 35(17) of the Order of the Supreme Court.”
Sixthly, non-compliance of Para 35(18) with the Supreme Court judgment. In this regard, the petitioners had submitted that the BMHRC: “Has also desisted from offering any explanation as to why it has failed to initiate necessary steps to analyse the substantial computerised medical data of over 3.89 lakh gas-victims that the BMHRC has reportedly been maintaining.
“Through such analyses, the BMHRC could have easily carried out scientific categorisation of gas victims according to the types and degree of injuries that they had suffered and could have developed standardised medical protocol for treating each category of ailment accordingly.
In the absence of such standardised medical protocol for treating each ailment, most gas victims are being provided only symptomatic treatment even thirty years after the disaster.”
Prolonged litigation
During the last eleven years, the 2012 petition— along with the contempt petition of 2015— has been listed for hearing nearly a hundred times before a dozen or so different Benches of the High Court of Madhya Pradesh at Jabalpur, until the Bench which is currently seized of the matter decided to initiate punitive action.
Declaring the National Informatics Centre guilty of contempt against the Supreme Court Order on August 9, 2012, the high court observed, “Despite the elapse of more than ten-and-a-half years, the respondents have demonstrated no urgency or sincerity in complying with directions of the Supreme Court as well as of this court, thereby leaving the gas victims in the lurch.
By failing to upgrade the status of the BMHRC, the Union of India and the ICMR are guilty of violating the said direction in Para 35(11) of the 2012 Order of the Supreme Court in the writ petition of 1998.
“The respondents have tried their level best to render the concept of public interest litigation (PIL) nugatory by dragging their feet in the process of compliance. This court does not see any good reason behind the laxity on the part of respondents except respondents’ insensitivity towards the gas victims.”
The fact that the high court has decided to initiate punitive action for contempt of court provides ample proof that the Union government and the state government have willfully disobeyed the directions of the Supreme Court of India, which has resulted in immense harm to the cause of the gas victims.
The great irony
It is a great irony that while the Union of India set up a premier institution such as All India Institute of Medical Sciences (AIIMS) in Bhopal in 2012 with the best of expertise and the best of equipment and facilities, gas victims without means do not have access to the same.
It is now known that a study on congenital deformation has been suppressed. In other instances, several studies— such as the one on chronic kidney disorder (CKD)— have been terminated midway.
While the Union government has ensured non-gas victims with means access to the best medical facilities in Bhopal, the very same Union government, which has taken on the responsibility of acting as the “parens patriae” (the legal guardian) of the gas victims through the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, has denied free access to the best medical facilities available in Bhopal to the gas victims with limited means, in blatant contravention of the Supreme Court directions!
It may also be noted that while there is resistance to upgrade the status of the BMHRC to that of an AIIMS (or for merging the BMHRC with the AIIMS, Bhopal), the BMHRC has a corpus fund of no less than ₹1,000 crore which is exclusively meant for the benefit of the gas victims but is lying unutilised.
It is high time that all concerned people (especially the medical fraternity) took note of this discrimination and raised their voices against such blatant injustice that is being meted out to the gas victims even 39 years after the Bhopal disaster.
N.D. Jayaprakash (jaypdsf@gmail.com) is co-convener, Bhopal Gas Peedith Sangharsh Sahayog Samiti and petitioner no.2 in contempt petition (C) no.832 of 2015.
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